01A23379_r
03-13-2003
Ricardo E. Shelton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ricardo E. Shelton v. United States Postal Service
01A23379
March 13, 2003
.
Ricardo E. Shelton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23379
Agency No. 4F-926-0220-98
Hearing No. 340-99-3902X
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated June 17, 2002, finding that it was in compliance
with the terms of the April 23, 2002 settlement agreement into which the
parties entered. See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b);
and 29 C.F.R. � 1614.405.
The settlement agreement provided, in pertinent part, that:
2. [Complainant] will be placed into a PTF vacancy in the Temple City
Post Office, upon satisfactory completion of a medical examination and
the required driving test.
6. The terms of this agreement will not establish any precedent, nor will
the Agreement be used as a basis by the Complainant or any representative
organization to seek or justify similar terms in any subsequent case.
By Information for Pre-Complaint Counseling form dated June 4, 2002,
complainant alleged that the agency breached the April 23, 2002 settlement
agreement. Specifically, complainant stated that he was informed by
an agency Labor Relations Specialist that she would not comply with
the settlement agreement. Complainant requested that �management be
required to comply with the agreement or work out a suitable solution,
or whatever makes him whole including proper monetary remedies.�
In response, the agency concluded that complainant's appeal to the
Commission concerning his noncompliance is premature. The agency further
concluded that the thirty-five (35) day time period for the agency to
issue a decision has not expired. Therefore, the agency stated that
its June 17, 2002 response shall constitute the agency's response and
decision concerning complainant's allegation of noncompliance. The agency
stated that it was a Labor Relations Specialist's determination that
complainant did not qualify for driving duties based on his current
driving record because he did not meet the eligibility requirements as
required in Postal rules and regulations. Further, the agency concluded
that based on a review of the record, the requirements as stipulated
in the agreement were unclear and open to interpretation. Moreover,
the agency determined that complainant's complaint will be returned to
an EEOC Administrative Judge (AJ) where processing ceased at hearing.
The record reveals that in a letter dated June 21, 2002, the AJ determined
that complainant's case was improperly placed back in the hearing process
without the concurrence of complainant because he could request that the
Commission require the agency to implement the terms of the settlement
agreement. The AJ further determined that by July 1, 2002, complainant
should notify the AJ whether he is satisfied or dissatisfied with the
agency's response which agrees to return the complaint to the hearing
process. By letter dated July 1, 2002, complainant's representative
informed the AJ that complainant has decided to appeal the agency's
breach of settlement agreement to the Commission.
On appeal, complainant states while the settlement agreement requires him
to take a driving test, it does not require him to pass the agency's
driver qualifications. Complainant argues that one of the three
violations in his driving abstract was a parking ticket in which he had
no proof of registration. Complainant further argues that the agency's
decision may be based upon discriminatory motive and disparate treatment.
Finally, complainant requests that the Commission order the agency to
implement provision (2) of the settlement agreement, as well as award
compensatory damages as a remedy.
In its response to the Commission dated July 15, 2002, concerning
complainant's appeal, the agency states that complainant was being
considered for a Letter Carrier position that requires driving.
The agency states that in the Postal Service Handbook EL-312, Section
516.1 requires the agency to obtain a state driving abstract for all
applicants who are being considered for positions that require driving.
Therein, Section 516.523 stipulates that "the application or potential
driving employee with more than one violation in the past 12 months,
three or more violations in the past 3 years, or five or more violations
in the past 5 years for all other traffic offenses, excluding parking,
is disqualified." The agency states that according to complainant's
Department of Motor Vehicle records, complainant had three violations
in three years and five violations in the past five years, none of which
were parking violations. The agency concludes that complainant did not
meet the eligibility requirements.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules
of contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996). The Commission has further
held that it is the intent of the parties as expressed in the contract,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon v. United States Postal
Service, EEOC Request No. 05910787 (December 2, 1991). This rule states
that if the writing appears to be plain and unambiguous on its face,
its meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
The agency, in its response to the Commission dated July 15, 2002, has
indicated it properly transmitted the case to an AJ from the point where
processing ceased, because complainant did not meet the eligibility
requirements of the position that was the subject of the settlement
agreement. We disagree.
The Commission determines that the agency breached provision (2).
By its own admission, it was not considering placement of complainant
into a PTF vacancy because of his driving record, and had transmitted
the matter to an AJ for a hearing on the underlying EEO complaint.
However, to remedy a finding of breach, the Commission may order
enforcement of the agreement's terms, as well as reinstatement of the
underlying complaint. See 29 C.F.R. � 1614.504(c). We determine that
the appropriate remedy in this case is to order the agency to comply with
provision (2) of the agreement. Complainant requests that the agreement
be implemented as a remedy for breach. Moreover, provision 2 of the
settlement agreement provides for an express obligation by the agency
to place complainant into a PTF vacancy in the Temple City Post Office
upon complainant's satisfactory completion of a medical examination and
a required driving test. The agreement, however, does not mandate that
complainant be precluded from placement into the PTF vacancy because
of his driving record, pursuant to the provisions of the Postal Service
Handbook referenced by the agency, and discussed above.
Accordingly, the agency's final decision is REVERSED. The matter is
REMANDED to the agency for further processing in accordance with the
ORDER below.<1>
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall implement provision (2) of the settlement agreement.
Specifically, the agency is ordered to place complainant in a PTF vacancy
in the Temple City Post Office, upon complainant's satisfactory completion
of a medical examination and the required driving test pursuant to
provision (2). A copy of the agency's notice to complainant that it will
implement provision (2) of the agreement must be sent to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 13, 2003
__________________
Date
1Complainant has requested compensatory
damages as a remedy for the breach of provision (2). The Commission
notes, however, that compensatory damages are not available for breach
allegations. Child v. Department of Transportation, EEOC Appeal
No. 01952080 (January 19,
1996).